The Constitution of the United States forbids “cruel and unusual punishments.” What does this mean? It seems clear that, when they enacted the Eighth Amendment in 1791, the framers aimed to prohibit pillorying, drawing and quartering, gibbeting, beheading, burning, breaking on the rack, and other horribles paraded for centuries in English squares. It’s equally clear that the framers did not intend to bar the death penalty itself. Over time, our courts have ordered, and states have imposed, execution by hanging, firing squad, electrocution, poison gas and, most recently, lethal drug injection.

For the recently deceased Supreme Court Justice Antonin Scalia, the original intent of the framers was the polestar of constitutional interpretation: Any punishment not deemed cruel and unusual in 1791 is not cruel and unusual now. For Justice Stephen Breyer, by contrast, the test changes over time according to what the court has called “evolving standards of decency.”

“Against the Death Penalty” (Brookings Institution Press, $14.95), written by Stephen Breyer and edited by John Bessler, gives us Justice Breyer’s view, as articulated in his 2015 dissent in the Glossip v. Gross case. In addition to Justice Breyer’s Glossip dissent, this slim volume includes as well a thorough and well-annotated introductory essay by John Bessler, a scholar of the death penalty who teaches at the University of Baltimore School of Law. Mr. Bessler summarizes the history of American jurisprudence on the death penalty and sketches the views of both its proponents (Justice Scalia, Justice Clarence Thomas and others) and its critics such as Justice Breyer.

Justice Breyer marshals several arguments against the constitutionality of the death penalty. First, he argues that the penalty is cruel because it is unreliable. He details research documenting numerous wrongful convictions and ultimate exonerations of death row inmates. He describes evidence of prosecutorial misconduct, false confessions, death inclinations of death-qualified jurors, flawed forensics and other phenomena.

Justice Breyer also argues that the death penalty is cruel because it is arbitrary. He cites studies showing that, while the penalty is meant to be imposed on what former Justice David Souter called “the worst of the worst,” it is in fact imposed most often not based on egregiousness of the crime but upon circumstances that ought to be irrelevant, such as race, gender and geography.

With respect to the latter, evidence that Justice Breyer invokes suggests that the discretionary authority of local prosecutors, the disparate resources available for defense counsel and the election of judges all play a role, and that these problems are largely intractable. Comparing several cases where prisoners were put to death to several where perpetrators of far more heinous and reprehensible multiple killings were not, Justice Breyer concludes, as the late Justice Potter Stewart did decades ago, that the death penalty is arbitrary and capricious in the same way that being struck by lightning is arbitrary and capricious.

Justice Breyer further maintains that the death penalty is cruel because of the excessive delays that attend its imposition. He shows that procedural safeguards required by our Constitution indicate that these delays will continue. He argues that the years and often decades of solitary confinement that ensue induce mental and physical harms, particularly in the many cases where governors have signed death warrants only to later revoke them.

Justice Breyer also shows, perhaps more compellingly, that the excessive delays defeat the death penalty’s penological rationale. The criminal law’s aims of deterrence, incapacitation, retribution and rehabilitation are not served. Rehabilitation is not achieved (or sought) by capital punishment. Incapacitation is secured equally by life imprisonment without possibility of parole. Deterrence is unlikely, given the extreme rarity with which the penalty is actually imposed today and the fact that the lengthy delays mean that death row inmates may now be as likely to die in prison of natural causes as to die from lethal injection.

Justice Breyer does not minimize or ignore the goal of retribution. He acknowledges that society has a valid interest in punishing murderers. He questions whether retribution is vindicated when the penalty arrives, if at all, decades after the crime. He contrasts this delay with the swiftness with which death penalties were imposed at our nation’s founding.

Justice Breyer also argues that the death penalty is unusual for Eighth Amendment purposes because its use is now in marked decline. Whether measured by number of death sentences pronounced or executions actually imposed, the death penalty has fallen into disuse. In 2014, for example, just three states (Texas, Missouri and Florida) accounted for 80 percent of U.S. executions, and only seven states conducted an execution. Between 2010 and 2015, only 15 counties (out of 3,143 nationwide) imposed five or more death sentences.

Justice Breyer’s argument is articulate and compelling. There are counterarguments. For example, the invocation of delay as an argument against the death penalty is somewhat circular: it is the serial review and abundance of process safeguards upon which Justice Breyer and his colleagues insist that create much of the delay that he then cites as a reason for the penalty’s unconstitutionality.

Moreover, while the definition of “cruel and unusual” is left to the interpretation of our Supreme Court, the justices must give due deference to the popular will as expressed by the legislative branch at the federal and state levels. That will of the people includes in many places and in varying degrees a spirit of retribution — of societal vengeance for murder — that is slow to fade and that will never disappear. Whether or when a majority of the United States Supreme Court will feel comfortable in supplanting that will as a blanket matter to bar the death penalty outright remains to be seen.

This book is a valuable contribution to the discussion. Justice Breyer and Mr. Bessler’s decision to omit the majority opinion of Justice Samuel Alito, the concurring opinions of Justices Scalia and Thomas, and the dissenting opinion of Justice Sonia Sotomayor may be forgivable as an editorial matter. But interested citizens could begin further research and thinking on the subject by reading all of those writings and then doing some quiet reflection of their own.

David Wecht is a justice of the Supreme Court of Pennsylvania. Any views expressed here are his and are not offered on behalf of the court.

First Published: December 24, 2016, 5:00 a.m.